Pope — Volume 57, Issue 3

President Obama's elevation of labor advocate Wilma Liebman to the National Labor Relations Board chairmanship occasioned examination of labor law's theoretical foundations. Liebman's critique that American labor law had been turned inside out by business-favoring jurisprudence provides Pope's starting point for analyzing fundamental conflicts within labor doctrine. The article questions how business values—grounded in entrepreneurial theory—came to occupy the center of labor law while worker values emphasizing solidarity were relegated to the periphery. Pope demonstrates that labor law originally incorporated positive jurisprudential understanding of worker solidarity through Section 7's protection of self-organization and concerted activity, distinct from the rational self-interest model currently dominating labor doctrine. The article traces how labor values drifted to the periphery due to absence of coherent core theory articulating labor activity, causing fragmented enforcement and weakened worker protections. Pope argues that restoring labor values requires revitalizing the positive vision of labor solidarity and concerted activity that animated the National Labor Relations Act's enactment. He demonstrates through historical and doctrinal analysis how worker-made norms of solidarity arise from culture grounded on solidarity, competing with employer-promoted rational self-interested culture. The article proposes that recognizing solidarity as central to labor jurisprudence offers opportunity for substantive doctrinal change, suggesting that labor law can be turned right-side out through coherent theoretical understanding of labor activity.

Topics: Labor & Employment · Legal Theory

Keywords: National Labor Relations Board · NLRB · labor solidarity · Section 7 · worker self-organization · concerted activity · entrepreneurial control · labor doctrine